Ms Brittany Gough v Sunstorm Pty Ltd T/A Willem's Art

[2020] FWC 1959

[2020] FWC 1959

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009
s.372 - Application to deal with other contravention disputes

Ms Brittany Gough
v
Sunstorm Pty Ltd T/A Willem's Art
(C2020/1962)

COMMISSIONER HUNT BRISBANE, 22 APRIL 2020

Application to deal with other contraventions dispute.

[1] On 30 March 2020, Ms Brittany Gough made an application pursuant to s.372 of the Fair Work Act 2009 (the Act), asserting that adverse action had been taken against her in the act of resigning her employment with Sunstorm Pty Ltd T/A Willem’s Art (the Respondent). The Respondent is also known as The Canvas Art Factory.

[2] Ms Gough resigned her employment on 13 March 2020 by providing two weeks’ notice. It is not contested between the parties that Ms Gough was excused by the Respondent from working the second week of her notice period, that being the period 23 – 27 March 2020.

[3] Ms Gough attended for work on 16 and 17 March 2020, however left the workplace on 17 March 2020 as she was unwell. She attended upon a medical practitioner, who certified her unfit for work on 17 and 18 March 2020. On 19 March 2020, she attended upon the same medical practitioner who certified her unfit for work on 19 and 20 March 2020.

[4] Upon receipt of her termination payment from the Respondent, Ms Gough noticed that payment had been deducted for 12 days, being the workdays between 12 March 2020 and 27 March 2020 inclusive.

[5] On 20 March 2020, Ms Gough sent an email to the Respondent requesting the payment of her wages that had been withheld from her, together with her annual leave. On 25 March 2020, Mr Willem Van De Beld responded:

“……………In this regard, as you are probably aware, the Clerks – Private Sector Award 2010 (under which you are covered), provides as follows in s. 13.1(d) in relation to a failure to give the required notice:

If an employee who is at least 18 years old does not give the period of notice required under paragraph (b),then the employer may deduct from wages due to the employee under this award an amount that is no more than one week’s wages for the employee.

In light of the above, we are entitled to withhold one week’s wages from your pay and I hereby advise that we will be doing so. In light of this, your final pay will be prepared accordingly.”

[6] On 15 April 2020 I held a telephone conference with the parties pursuant to s.374 of the Act. After hearing from the parties, I explained to Mr Van De Beld that I considered the Respondent had unlawfully withheld from Ms Gough the entitlements owing to her on termination; that being 12 days’ wages.

[7] Mr Van De Beld explained that he had received advice that he could withhold the monies. His explanation does not, of course, address why in is his correspondence of 25 March 2020 he describes the withholding, pursuant to the Clerks – Private Sector Award 2020 of a maximum of one weeks’ wages. I urged the Respondent to promptly make good the payment of all monies lawfully owed to Ms Gough. I informed the Respondent that in my view, she was entitled to all of the monies withheld, particularly given she had provided medical certificates for the period 17 – 20 March 2020 inclusive, in satisfaction of her inability to attend for work on those days. There is simply no explanation offered by the Respondent for withholding payment for the following days:

12, 13, 16, 23, 24, 25, 26, 27 March 2020

[8] Following the conference I forwarded to the parties a draft recommendation, and I informed the parties that I intended to publish a recommendation pursuant to s.595(2) by 21 April 2020 if this matter was not resolved to Ms Gough’s satisfaction. Ms Gough informed my chambers on 20 April 2020 the following:

“Good afternoon Commissioner 

Thank you for your draft recommendation. At this point in time, no agreement or communication has been reached, or made, in regard to the monies owing to me. 

…..

If any new information arises prior to COB tomorrow I will inform you as soon as possible. 

Kind regards

…..”

[9] I did not receive any further correspondence by close of business 21 April 2020 from Ms Gough.

[10] It is my recommendation that the Respondent pay to Ms Gough all monies withheld from her for the period 12 – 27 March 2020 inclusive. This should be paid to her within seven days of this recommendation.

[11] I have informed Ms Gough of her rights to pursue the Respondent in the event the Respondent does not make the necessary payments to her.

COMMISSIONER

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